United States v. Antonio Rivera-Santiago, A/K/A Junior Vivique, United States of America v. Nestor Cancel-Hernandez, A/K/A Papo, United States of America v. Edwin Romero-Lopez, United

7/26/2019 United States v. Antonio Rivera-Santiago, A/K/A Junior Vivique, United States of America v. Nestor Cancel-Hernand

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872 F.2d 1073

UNITED STATES of America, Appellee,

v.

Antonio RIVERA-SANTIAGO, a/k/a Junior Vivique,

Defendant, Appellant.UNITED STATES of America, Appellee,

v.

Nestor CANCEL-HERNANDEZ, a/k/a Papo, Defendant,

Appellant.


v.

Edwin ROMERO-LOPEZ, Defendant, Appellant.UNITED STATES of America, Appellee,

v.

Henry CASTRO-POUPART, a/k/a Quique, Defendant,

Appellant.


v.

Luis ROMERO-LOPEZ, a/k/a Nando, Defendant, Appellant.


v.

Manuel ORTIZ-ORTIZ, Defendant, Appellant.

Nos. 87-1580, 87-1581, 87-1583, 87-1649, 87-1650 and 87-1582.

United States Court of Appeals,First Circuit.

Nos. 87-1580, 87-1581, 87-1583, 87-1649 and 87-1650 Heard

Dec. 9, 1988.

No. 87-1582 Heard Jan. 13, 1989.

Decided March 30, 1989.

As Amended April 5, 1989.

Ricardo L. Rodriguez Padilla for appellant Antonio Rivera-Santiago.


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I. BACKGROUND

Eric M. Cohen with whom Jack R. Blumenfeld and Blumenfeld & Cohen,

Coral Gables, Fla., were on brief for appellant Nestor Cancel-Hernandez.

Rafael F. Castro Lang, San Juan, P.R., by Appointment of the Court, for

appellant Edwin Romero-Lopez.

Seth M. Kalberg, Jr., Boston, Mass., by Appointment of the Court, forappellant Henry Castro-Poupart.

Francis C. Newton, III, Arlington, Mass., by Appointment of the Court,

for appellant Luis Romero-Lopez.

Miriam Ramos-Grateroles, by Appointment of the Court, for appellant.

Mervyn Hamburg, Dept. of Justice, Washington, D.C., with whom Daniel

F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the UnitedStates.

Before BOWNES, BREYER and SELYA, Circuit Judges (Nos. 87-1580,

87-1581, 87-1583, 87-1649 and 87-1650).

Before BOWNES, BREYER and TORRUELLA, Circuit Judges (No. 87-

1582).

BOWNES, Circuit Judge.

1 The six defendants-appellants were all convicted by a jury under count one of a

nine count indictment of being part of a conspiracy with intent to possess and

distribute amounts of marihuana,1in violation of 21 U.S.C. Secs. 841(a)(1) and

846. The marihuana had been smuggled into Puerto Rico from Colombia on

four different occasions. Each of the defendants was also found guilty of one or

more of the other eight substantive counts which charged aiding and abetting in

the importation of marihuana (counts 2, 4, 6, and 8) and aiding and abetting the

possession of marihuana with intent to distribute (counts 3, 5, 7 and 9). Each of

the appeals will be discussed separately but before considering the individual

cases, an exposition of the genesis, operation and demise of the smuggling

venture which was the source of the marihuana supply is necessary as a

background.

2 The chief witness for the government, Jose E. Panzardi-Alvarez, a/k/a Polo,

was the principal planner, organizer and director of the marihuana smuggling


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venture and the conspiracy to possess and distribute it. He was named in the

indictment as an unindicted conspirator. The source of supply for the enterprise

was Jacobo Mendez-Compo who resided in Colombia. All of the marihuana

brought to Puerto Rico came from Colombia and was sold to Panzardi by

Mendez. Mendez was named as a defendant in all nine counts of the

indictment. He is not a party to this appeal. Panzardi's chief lieutenant, Cesar

Castro-Gomez, was also indicted on all nine counts; he is not a party to thisappeal.

3 Panzardi, who had prior experience in drug trafficking, decided in late 1981 to

smuggle marihuana into Puerto Rico for distribution and sale. He told Nestor

Cancel Hernandez, one of the appellants and an acquaintance of Panzardi, that

he needed someone who knew about airplane landing fields in Puerto Rico.

Cancel introduced him to Castro and the venture began.

4 The first smuggling operation, however, was by sea, not by air. Panzardi owned

a large Chris Craft motorboat, the Survive, which he decided to use for

smuggling. He contacted Mendez in Colombia and arranged to rendezvous in

January of 1982 with a ship from Colombia carrying a load of marihuana. This

operation, however, went awry. The Colombian ship developed engine trouble

and the marihuana had to be jettisoned when the Coast Guard arrived to render

assistance.

5 Panzardi was not one easily discouraged. He telephoned Mendez and

arrangements were made within two weeks of the failed smuggle to send

another boatload of marihuana to be transferred to Panzardi's boat. The

rendezvous point was off Saba Island, one of the Leeward Islands east of St.

Croix. The plan was that the marihuana would be transferred to Panzardi's boat,

the Survive, which would take it to Palmas del Mar, a resort development on

the east coast of Puerto Rico near the town of Humacao. After two

unsuccessful attempts to contact the Colombian ship, rendezvous was made on

the third try and the marihuana was off-loaded to the Survive. The marihuana

was landed accorded to plan but not without difficulty. The weight of the

marihuana caused the Survive to ride low in the water and it took on water,

which caused some damage to the marihuana. The Survive was anchored

offshore and the marihuana loaded on a small boat for the final transfer to land.

After the marihuana had been brought ashore it was loaded on two vans and a

truck and taken to a house in Humacao for storage before distribution. The

entire shipload weighed between 8,500 and 9,000 pounds.

6 In April 1982, Panzardi, his chief lieutenant, Castro, and Luis Viera Lourido,

another indicted defendant not a party to this appeal, and three women friends


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went for a ride on the Survive to celebrate the success of the smuggle. During

the celebration the Survive ran aground on some rocks. The celebrants

survived, but the Survive was wrecked beyond repair. Thus ended Panzardi's

smuggling by sea. He now turned to the air.

7 Mendez was contacted by Panzardi in the late summer of 1982 and

arrangements were made to have a load of marihuana picked up by plane inColombia and flown to Puerto Rico. Panzardi owned a Piper Aztec, which was

to be used for the smuggle. He hired two pilots with previous marihuana

smuggling experience, Shaun Baldacchino and Fred McNulty. Both are named

in the indictment as being part of the conspiracy. Baldacchino entered into a

plea agreement with the government and testified at the trial. McNulty is not

involved in this appeal.

8 In the middle of September, Baldacchino and McNulty flew the Piper Aztec to

the pick-up site in Colombia. About one thousand pounds of marihuana were

picked up and flown to a landing strip at Palmas del Mar. The marihuana was

transferred to a van owned by Panzardi and then driven to a house for storage

and distribution. The plane was left on the airstrip after the marihuana had been

loaded. Panzardi intended to pick it up the next day. Unfortunately for him,

United States Custom Officers found the plane and confiscated it. Panzardi was

eventually able to regain possession of it, but the plane was no longer used for

marihuana smuggling.

9 Panzardi purchased a Twin Beech aircraft in early October. It was flown to St.

Thomas and parked there while plans were made for the next smuggle. Mendez

was contacted again and arrangements were made to pick up another load of

marihuana in Colombia and to fly it to the landing strip at Palmas del Mar. The

same pilots were used. This smuggle went smoothly. Fifteen hundred pounds of

marihuana were brought to Palmas del Mar, unloaded, stored and then

distributed.

10 The final smuggle took place in December of 1982. A load of about eighteen

hundred pounds of marihuana was picked up in Colombia and flown to Palmas

del Mar in the Beechcraft by the same pilots. This time, however, there was a

new development. After the marihuana had been placed aboard a truck and

driven away, the police arrived. The plan, as in the prior operation, had been for

the pilots accompanied by two women and Panzardi and his mistress, Gloria

Nieves Baez, to fly to St. Thomas to allay suspicion and then split up. This time

the group went to the police station in Humacao instead of St. Thomas. After

questioning, all were released. The marihuana which had been smuggled in on

the plane was distributed and sold. Thus, the final smuggle was a success.


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II. THE APPLICABLE LAW

11 In addition to Panzardi there were also other participants in the smuggling

venture who testified for the government: Francisco Vega Estrado testified in

detail about the smuggle by sea. Louis Viera Lourido was also involved in the

sea smuggle. Carlos Riollano knew Panzardi as a fellow marihuana distributor.

He learned about Panzardi's plan to smuggle marihuana by plane and

introduced the pilot, McNulty, to Panzardi. Hector Jesus Padilla Navarez was

familiar with some of the participants. As already noted, Shaun Baldacchinowas a government witness. The other government witness that had first-hand

knowledge of the smuggling operations was Gloria Nieves Baez, Panzardi's

paramour.

12 Before discussing the individual cases, we set forth the legal principles that

apply to all the appeals. First, we must review the evidence in the light mostfavorable to the government, including any legitimate inferences which can be

drawn from it to determine whether a rational jury could have found each

defendant guilty beyond a reasonable doubt. United States v. Drougas, 748 F.2d

8, 15 (1st Cir.1984); United States v. Izzi, 613 F.2d 1205, 1206 (1st Cir.), cert.

denied, Santos v. United States, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 793

(1980). Second, since all appellants were convicted under count one of being a

part of a conspiracy to possess with intent to distribute marihuana, the law

applicable to membership in a conspiracy must be discussed. And the lawrelative to single versus multiple conspiracies requires comment. A short foray

into conspiracy law must, therefore, be made.

13 The sine qua non of a conspiracy is the agreement between the conspirators,

"and it is therefore essential to determine what kind of agreement or

understanding existed as to each defendant." United States v. Glenn, 828 F.2d

855, 857 (1st Cir.1987) (quoting United States v. Borelli, 336 F.2d 376, 384 (2d

Cir.1964), cert. denied, Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct.647, 13 L.Ed.2d 555 (1965)). In order to prove that a defendant belonged to and

participated in a conspiracy, the government must prove two kinds of intent;

intent to agree and intent to commit the substantive offense. United States v.

Drougas, 748 F.2d at 15; United States v. Flaherty, 668 F.2d 566, 580 (1st

Cir.1981).

14 Because of the secretive nature of the crime, it is recognized that the agreement

may be express or tacit. The agreement, whether tacit or express, may beproven by circumstantial as well as express evidence. "[A] common purpose

and plan may be inferred from a development and collocation of

circumstances." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86


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L.Ed. 680 (1942). The actions, as well as the words of the defendants, are

evidence of the existence and scope of a conspiracy. United States v. Glenn,

828 F.2d at 857. It is not necessary that the government prove that the

defendants knew all of the details of the conspiracy and the participation of

others. All that is required is to show "the essential nature of the plan and their

connections with it." Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct.

248, 256, 92 L.Ed. 154 (1947); United States v. Hinds, 856 F.2d 438, 443 (1stCir.1988). We have held that an individual could be found to be part of a

conspiracy to possess and distribute cocaine even though he neither directly

participated in interstate trafficking nor knew the precise extent of the

enterprise. The fact that he participated in one retail link of the distribution

chain, knowing that it extended beyond his individual role, was sufficient.

United States v. Moosey, 735 F.2d 633, 635-36 (1st Cir.1984). We have also

analogized a conspiracy to a moving train: "[A] conspiracy is like a train. When

a party knowingly steps aboard, he is part of the crew, and assumesconspirator's responsibility for the existing freight--or conduct--regardless of

whether he is aware of just what it is composed." United States v. Baines, 812

F.2d 41, 42 (1st Cir.1987).

15 The question of whether there is a single or multiple conspiracy is one of fact

for the jury. United States v. Drougas, 748 F.2d at 17. Factors to be considered

by the jury are, "the nature of the illegal activity, the method of operation, and

the scope of conspirator involvement." Id. That every defendant did notparticipate in every transaction "does not transform a continuing plan into

multiple conspiracies." Id.; United States v. Arruda, 715 F.2d 671, 678 (1st

Cir.1983); United States v. Elam, 678 F.2d 1234, 1247 (5th Cir.1982). A single

conspiracy is proved if the evidence sufficiently shows "that all of the alleged

conspirators directed their efforts towards the accomplishment of a common

goal or overall plan...." United States v. Drougas, 748 F.2d at 17. In United

States v. Giry, 818 F.2d 120, 127, cert. denied, --- U.S. ----, 108 S.Ct. 162, 98

L.Ed.2d 116 (1987), we noted that a scheme to manufacture and distribute alarge quantity of illicit drugs "involved a great many discrete steps and includes

a large number of people, most of whom know few of the other participants in

the scheme" and thus could be described "as the sum of many discrete

conspiracies." We nevertheless held, in accord with the great majority of

federal courts, that the entire scheme could be "characterized as a single

conspiracy and treating each discrete step as one of the links in an indivisible

chain." Id. It is now generally accepted that when a number of people combine

efforts to manufacture, distribute and retail narcotics, there is a singleconspiracy, a "chain conspiracy," despite the fact that some of the individuals

linking the conspiracy together have not been in direct contact with others in the

chain. Id. at 127 (collecting cases). The same principles apply to a conspiracy to


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III. THE INDIVIDUAL CASES

A. NO. 87-1580, ANTONIO RIVERA-SANTIAGO A/K/A JUNIOR VIVIQUE

possess and distribute marihuana.

16 There is no question in this case of the sufficiency of the evidence to prove a

single conspiracy to possess and distribute marihuana in Puerto Rico during the

time alleged in the indictment, the end of 1981 through the first months of

1983. Panzardi's testimony, which was corroborated by other members of the

conspiracy, provided proof beyond a reasonable doubt of the existence of such aconspiracy. The only question is the extent and nature of the involvement of the

defendants-appellants. As we review the evidence in the individual cases, it is

important to keep in mind that count one charges a conspiracy to possess and

distribute marihuana, not a conspiracy to smuggle marihuana into Puerto Rico.

The indictment states in pertinent part:

17 Beginning on or about the end of 1981, continuing through and until the first

few months of 1983 at [various places] ... the defendants herein [names] ... did

unlawfully, intentionally, wilfully, and knowingly, conspire, combine,

confederate and agree together and with each other to possess with intent to

distribute amounts of marijuana, .... [Emphasis added].

18

19 Rivera was convicted on the conspiracy count and on count three, that he and

others in April of 1982, aiding and abetting each other, did intentionally possess

with intent to distribute in excess of one thousand pounds of marihuana.2His

contention on appeal is that the evidence was insufficient to sustain his

conviction.

20 Our review of the record shows the following evidence of Rivera's participation

in the conspiracy. Panzardi testified that he drove a truckload of marihuanafrom the sea smuggle to the house of "Vivique." He identified the defendant

Rivera as being Vivique. Panzardi then testified that he did not remember any

conversation with Rivera but stated: "there must have been some because I

wasn't going to arrive there with a truck full of marihuana without prior notice."

Panzardi further testified that prior to storing the marihuana at the house,

Rivera had lived there with his wife and mother. Panzardi stated that when he

looked over the house prior to using it to store the marihuana he felt that it was

"too out in the open to be secure." He therefore told Rivera, who did solderingand grill work, to put a grill on the house.

21 In response to questions from the court, Panzardi testified that he personally


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made an arrangement with defendant Rivera that marihuana would be stored in

a house which was to be obtained by Rivera. Panzardi and Rivera together

looked over a house of a friend of Rivera's, "El Maestro," but it was not

satisfactory. It was therefore decided that the house in which Rivera lived

would be used for marihuana storage and that Rivera would rent another house

for himself, his wife and mother.

22 Panzardi moved into the house as soon as the marihuana was unloaded and

presumably stayed there until it was distributed. On redirect examination

Panzardi testified that he spoke to Rivera about using Rivera's house for storage

of marihuana and that Rivera had agreed to do so. Panzardi's testimony was

corroborated by Gloria Nieves Baez. She testified that she was present when

Panzardi and Rivera discussed the need of a house as a marihuana storage

facility. Nieves further testified that Rivera agreed to put bars on his house if

Panzardi would bear the cost.

23 Based on the evidence, the jury could have found that defendant Rivera agreed

with Panzardi to provide Panzardi with a house for storing marihuana and that a

truckload of marihuana was stored in Rivera's house. The inference that Rivera

was part of a conspiracy to possess and distribute marihuana within the time

frame of count one follows inexorably. A truckload of marihuana is obviously

not for personal use. Rivera knew that his house was to be used as a storage

depot until distribution could be arranged. Although there was no evidencedirectly linking Rivera to other members of the conspiracy, in addition to

Panzardi, such knowledge was an obvious inference. Distribution of marihuana

requires a number of outlets. Rivera must have known that storing the

marihuana at his house was preliminary to distributing it for sale. In this

connection we note that Panzardi testified that Rivera was given a bale of

marihuana for the use of his house, which he turned over to a friend to sell for

him. It can be inferred from this that Rivera was no stranger to the distribution

and sale of marihuana. While it is true that there is no evidence Rivera was toldof the scope and extent of the enterprise, he must have known that it was of

some magnitude. A truckload of marihuana is not obtained without

organization and planning. Rivera's position is similar to that of the cocaine

seller in United States v. Moosey, 735 F.2d 633, discussed supra. The fact that

he participated in one step of the distribution chain, knowing that it must extend

beyond his individual role, is sufficient to make him part of the enterprise that

Panzardi directed.

24 The same evidence is sufficient for a conviction on the substantive count--

aiding and abetting in intentionally possessing marihuana for distribution. Since

Rivera willingly allowed his house to be used as a storage depot for the


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B. NO. 87-1581, NESTER CANCEL-HERNANDEZ, A/K/A PAPO

marihuana, he could be found to be an aider and abettor.

25 The conviction of Rivera-Santiago is affirmed.

26

27 Defendant Cancel was convicted on count one and on count three of the lesser-

included offense of intentionally possessing in April of 1982 less than one

thousand pounds of marihuana. He raises three issues on appeal: (1) the

evidence was insufficient to prove his knowledge of the charged conspiracy;

(2) that there was a prejudicial variance between the single conspiracy alleged

in the indictment and the multiple conspiracies proved at trial; (3) that co-

conspirator hearsay statements were improperly admitted.

28 The evidence as to Cancel's involvement is as follows. In late 1981 or early

1982 Panzardi told Cancel that he wanted to find someone who knew about

airfields in Puerto Rico. Cancel replied that Cesar Castro, who subsequently

became Panzardi's chief lieutenant, had such knowledge. Luis Viera Lourido,

an indicted defendant who was a witness for the government, testified that he

had met Cesar Castro at Cancel's home. Between four and five hundred pounds

of marihuana, from the sea smuggle, were delivered to Cancel. One or two days

prior to the delivery of the marihuana to Cancel, Panzardi and Cancel had a

conversation in which Panzardi told Cancel about the marihuana, and Canceltold him to bring it over. When Panzardi was asked how Cancel paid for the

marihuana, he answered: "The way it was done on previous occasions, different

dates.... He would give me twenty-five thousand; in a couple of days he would

give me another amount. That was the way he used to pay." Panzardi further

testified that payments were made after delivery, and he collected the money

from Cancel. There was the following testimony from Hector Jesus Padilla

Navarez, a defendant who pled guilty. In 1982 Padilla made arrangements for

Panzardi to store marihuana in a house near Padilla's residence. Padilla had beentold that the marihuana had arrived by boat. There was a large amount of

marihuana stored in the house. Padilla helped distribute it to customers who

came to the house. One of those that picked up marihuana from the house was

Cancel.

29 There are no grounds for excluding the testimony of Panzardi as to what Cancel

told him. This testimony falls squarely within the definition of Fed.R.Evid.

801(d)(2)(E). See discussion infra in the case of Ortiz-Ortiz. We therefore findagainst appellant on the third issue.

30 Cancel's chief defense is that the urchase of the marihuana from Panzardi was


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but a single transaction and that there is no proof that he knew anything about

the conspiracy. There is no doubt that a single sale of drugs without more does

not suffice as proof of being part of a conspiracy. United States v. DeLutis, 722

F.2d 902, 905-06 (1st Cir.1983); United States v. Izzi, 613 F.2d at 1210. The

question therefore is whether Cancel's contact with the conspiracy was limited

to a single purchase of marihuana.

31 We think not. Cancel introduced Cesar Castro to Panzardi because he knew that

Panzardi was looking for someone with a knowledge of airfields in Puerto Rico.

One of the other defendants, Viera, had met Cesar Castro at Cancel's home.

Before delivering the marihuana, Panzardi had called and told him that he had

it. Cancel then said, "If you have it bring it over." When Panzardi testified

about how Cancel paid for the marihuana, he said that Cancel paid for it "the

way it was done on previous occasions." From these facts, the jury could fairly

infer: that Cancel was in the business of distributing marihuana; that he haddealt with Panzardi in the past; that he knew from Panzardi's inquiry about

airfields that Panzardi was going to import some sort of illegal drugs into

Puerto Rico, probably marihuana; and that Panzardi was a regular source of

supply for Cancel's marihuana business. The jury could also infer that Cancel

must have known that supplying marihuana for distribution and sale requires an

organization and planning. It is true that there is no direct evidence of an

agreement between Panzardi and Cancel whereby Cancel would act as a

distributor for Panzardi. But, as the cases already cited hold, evidence of anagreement can be found from the actions of the parties and the circumstances.

Viewing the evidence in the light most favorable to the government, we find

that the jury had a solid evidentiary basis for finding beyond a reasonable doubt

that Panzardi and Cancel agreed to possess and distribute marihuana within the

time frame of count one of the indictment. This is all that is necessary to sustain

the conviction on the conspiracy count.

32 Defendant stresses that there is no evidence linking him to the air smuggles.This is true but it is also irrelevant. As already pointed out, count one does not

charge any of the defendants with conspiring to smuggle, possess and distribute

marihuana. All that is charged is a conspiracy to possess and distribute

marihuana between the end of 1981 and the beginning of 1983.

33 We have already held that there was ample evidence from which the jury could

have found that this was a single conspiracy, so that disposes of defendant's

second challenge based on prejudicial variance. The conviction on count one isaffirmed.

34 There can be no serious challen e to the findin that Cancel ossessed between


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C. NO. 87-1583, EDWIN ROMERO LOPEZ

Your Honor, at this time I would move for a cautionary instruction and this is

because these government witnesses on direct, they're bringing out a series of prior

criminal acts which are not the object of this indictment and the jury may be

inferring or associating these particular defendants with all these prior criminal acts.

And I believe it's proper to avoid that potential prejudice, that the Court give a

cautionary instruction to the effect that all of the prior criminal acts the jury should

not in any way associate the defendants here that are in trial with all of these priorcriminal acts that are being mentioned by the government witnesses. Their own

witnesses' prior bad acts.

four and five hundred pounds of marihuana; the conviction on count three is

affirmed.

35 In addition to being found guilty on the conspiracy count, (one), Edwin Romero

was also convicted on the following counts: two, aiding and abetting in thetransportation of marihuana in April of 1982; three, aiding and abetting in the

possession of marihuana with the intent to distribute in April of 1982; and, six,

aiding and abetting in October and November of 1982 in importing marihuana

into the United States. Edwin Romero was not charged on counts four and five,

aiding and abetting in the possession and importation of marihuana on

September 16, 1982. He was found not guilty on the following counts: seven,

aiding and abetting in October and November of 1982 in possessing marihuana

with the intent to distribute it; eight, aiding and abetting in the importation ofmarihuana on or about December 11, 1982; nine, aiding and abetting on

December 11, 1982 in the possession of marihuana with the intent to distribute

it.

36 This defendant alleges four errors by the trial court: (1) failing to give a

requested cautionary instruction about evidence of prior crimes elicited by the

government from its own witnesses on direct examination; (2) restricting cross-

examination of a government witness; (3) improperly admitting into evidenceco-conspirator hearsay statements; and (4) allowing hearsay statements in

evidence was a violation of appellant's sixth amendment right "to be confronted

with the witnesses against him."

37 (1) The Failure To Give A Requested Cautionary Instruction

38 During a voir dire3of the government's chief witness, Panzardi, defendant's

counsel moved for a cautionary instruction:

39


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40 The court refused to give a cautionary instruction, stating: "I don't think it's

necessary, frankly. I don't think it's called for at all." All of the defendants

joined in objecting to this ruling. There was no request for a continuing

objection.

41 The government takes the position that the defendant waived his objection byfailing to object when Panzardi testified before the jury about a plea agreement

in another case and by failing to object when four other witnesses testified

about their plea agreements and other crimes they had committed. We think the

government has a valid point. Although the judge's ruling was emphatic and

indicated that future objections would be fruitless, defense counsel, absent the

grant of a continuing objection, could preserve an "error of law" issue only by

continuing to object when the testimony warranted it as the trial progressed. In

his charge to the jury the trial judge gave the standard "accomplice" instruction

stating, inter alia: "And the fact that an accomplice has entered a plea of guilty

to the offense charged is not evidence in and of itself of the guilt of any other

person."

42 The record does not show whether a more detailed instruction along the lines

suggested at the voir dire of Panzardi was requested, but the record is clear that

there were no objections by any defense counsel to the court's final instructions

to the jury. The question, therefore, is whether the trial court's failure to give a

cautionary instruction when requested constituted reversible error.

43 In United States v. Pelletier, 845 F.2d 1126, 1129 (1st Cir.1988), we found that

a standard "accomplice" instruction met defendant's request for a cautionary

instruction about the testimony of co-conspirators showing the nature and

extent of the conspiracy. We stated: "The court gave a standard cautionary

instruction and the defendant requested no further charge." As far as we can

determine, this is the only First Circuit case in the general target area. Wetherefore turn to other circuits.

44 The general rule seems to be that a cautionary instruction should be given, if

requested, but the failure of the trial court to give one sua sponte is not

reversible error. See United States v. Smith, 790 F.2d 789, 793-94 (9th

Cir.1986); United States v. Christian, 786 F.2d 203, 214 (6th Cir.1986); United

States v. Ojukwa, 712 F.2d 1192, 1194 (9th Cir.1983); United States v.

DeLucca, 630 F.2d 294, 299 (5th Cir.1980), cert. denied, 450 U.S. 983, 101S.Ct. 1520, 67 L.Ed.2d 819 (1981); United States v. Rothman, 463 F.2d 488,

490 (2d Cir.), cert. denied, 409 U.S. 956, 93 S.Ct. 291, 34 L.Ed.2d 231 (1972).

This case, however, does not fit neatly into this category.


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Evidence of [ ] guilty pleas is amenable to misuse. Without instruction, it is possible

the jury could use the pleas as evidence of [ ] guilt. This danger may be averted only

by adequate cautionary instructions.... The most effective practice would be to

instruct the jury when the evidence of the plea is admitted, and again in final

instructions.

45 We have no difficulty finding that the cautionary instruction should have been

given. Panzardi and the other co-conspirator government witnesses testified

freely, almost cheerfully, about a long list of drug-related crimes which they

had committed. Gloria Nieves testified that she had been sentenced to six years

for complicity in the murder of an informant. There was a real and palpable risk

of guilt by association. We agree with the Ninth Circuit:

46

47 United States v. Halbert, 640 F.2d 1000, 1006 (9th Cir.1981).

48 The question, however, is whether the refusal of the district court to give a

cautionary instruction when requested was reversible error. Three criteria must

be met in order to find reversible error. The requested instruction must be: (1)

substantially correct; (2) not substantially given in the charge to the jury; and

(3) the failure to give it substantially impaired defendant's ability to present a

specific defense. United States v. Williams, 809 F.2d 75, 86 (1st Cir.1986),

cert. denied, Blandin v. United States, 481 U.S. 1030, 107 S.Ct. 1959, 95

L.Ed.2d 531 (1987). We cannot say that the tripartite test for reversible errorwas met here. The requested instruction was substantially correct, but it was

covered adequately, if not fully, in the charge and the failure to give it was not

fatal to any facet of Edwin Romero's defense. Moreover, the failure to object to

the testimony of the government witnesses when presented to the jury and the

failure to object to the final charge to the jury amounted to a waiver of the voir

dire request for a cautionary instruction.

49 (2) The Restriction On Cross-Examination

50 There can be no doubt that the confrontation clause of the sixth amendment

includes the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94

S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974); Douglas v. Alabama, 380 U.S.

415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). This right, however, is

not boundless. "The extent of cross-examination with respect to an appropriate

subject of inquiry is within the sound discretion of the trial court." United

States v. Alford, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed.2d 624 (1931).See also United States v. Mazza, 792 F.2d 1210, 1228 (1st Cir.), cert. denied,

479 U.S. 1086, 107 S.Ct. 1290, 94 L.Ed.2d 147 (1987); United States v.

Silvestri, 790 F.2d 186, 190-91 (1st Cir.), cert. denied, 479 U.S. 857, 107 S.Ct.


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197, 93 L.Ed.2d 129 (1986). The test on review of restriction on cross-

examination is abuse of discretion. United States v. Tracey, 675 F.2d 433, 437-

38 (1st Cir.1982). We now examine the restriction at issue.

51 The witness was Gloria Nieves. She had testified on direct examination that she

had pled guilty to aiding and abetting the murder of an informant and had

received a sentence of six years. The sentence was part of a plea agreement inwhich she had agreed to cooperate with the government. On cross-examination

defense counsel sought to introduce the sentencing order in which the judge

had recommended that Nieves be given a psychiatric evaluation and treatment

for possible drug addiction. In the alternative, defense counsel sought to bring

out that such a referral order had been made. After initially deciding to allow

cross-examination on this subject, the trial judge changed his mind and ruled

that the referral order would not be allowed in evidence and no cross-

examination on the subject would be allowed.

52 We have no difficulty upholding the ruling of the district court. Defendant is

correct that cross-examination of a government witness' psychiatric history is a

proper subject of cross-examination. But there was no evidence that Nieves had

received psychiatric treatment or had been treated for drug addiction. The

referral order was simply a request that the prisoner be given a psychiatric

evaluation and treatment for possible drug addiction. We can take judicial

notice of the fact that such referral orders are frequently used when theevidence at trial reveals that defendant has used drugs. There was no offer of

proof by defendant that Nieves had ever undergone psychiatric treatment or

treatment for drug addiction. One of the main objects of cross-examination is to

impeach the credibility of witnesses. Davis v. Alaska, 415 U.S. at 315-16, 94

S.Ct. at 1109-10. This, however, does not mean that the basis for impeachment

can be suggestion or innuendo with no evidentiary foundation. The jury may

well have thought that the referral order by the sentencing judge was a finding

that Nieves needed psychiatric treatment. This, of course, is why defendantwanted the order in evidence. But such a conclusion by the jury would have

been entirely unwarranted. The district court did not abuse its discretion in

prohibiting cross-examination on this subject. We end our discussion by noting

that Nieves received a complete and thorough grilling by defense counsel on all

matters that properly went to her credibility.

53 (3) Co-Conspirator's Hearsay Statements

54 Federal Rule of Evidence 801(d)(2)(E) provides that "a statement by a

coconspirator of a party during the course and in furtherance of the conspiracy"

is not hearsay. The Supreme Court has recently reiterated the rule governing the


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Before admitting a co-conspirator's statement over an objection that it does not

qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually

falls within the definition of the rule. There must be evidence that there was a

conspiracy involving the declarant and the nonoffering party, and that the statement

was made "in the course and in furtherance of the conspiracy."

admission of such a statement:

55

56 Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 2779, 97 L.Ed.2d

144, (1987).

57 We set forth the statements to which defendant objects in the order in which

they were made. Co-conspirator Francisco Vega Estrada, testifying as a

government witness, stated: "The van arrived, loaded with marijuana and I was

informed that the person that was travelling in the van was the brother of theowner of the house, for me not to be concerned, that they were related, they

were family." The person that told Vega that the driver of the van was "family"

was never identified. This would render Vega's statement inadmissible: it did

not meet the requirements of Fed.R.Evid. 801(d)(2)(E). But there was no

objection to the statement. Fed.R.Evid. 103(a)(1) provides:

58 (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which

admits or excludes evidence unless a substantial right of the party is affected,and

59 (1) Objection. In case the ruling is one admitting evidence, a timely objection

or motion to strike appears of record, stating the specific ground of objection, if

the specific ground was not apparent from the context.

60 Defense counsel's motion at the close of the evidence to strike the statementdoes not meet the requirement of the rule that there be a "timely objection."

Defendant's contention that the statement was improperly admitted is rejected.

61 After Vega made the hearsay statement, he was asked: "Have you seen that

person that was driving that van that night today?" He answered "yes" and then

made a courtroom identification of defendant. The answer and courtroom

identification was not a statement as defined in Fed.R.Evid. 801(d)(2)(E). It

was direct testimony, not "a statement made by a coconspirator of a partyduring the course and in furtherance of the conspiracy."

62 The next statement, to be exact series of statements, was by Panzardi. He


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testified that defendant was one of the ones that helped unload the marihuana

from the Survive in the sea smuggle. Panzardi testified that he knew who did

the unloading because "I had to pay them." Defendant was identified as one of

the unloaders. In further testimony about the sea smuggle Panzardi testified that

he did not personally pay Vega and then stated: "The one whom I had put in

charge of paying everyone was Cesar." When asked what happened to the

twelve or thirteen hundred pounds of marihuana from the sea smuggle thatremained in one of the storage houses, Panzardi stated: "Well, from that we

spoke, Cesar, Nando and myself and we agreed that from that marijuana Cesar

would receive his pay, Frank would receive his pay and Nando would receive

his pay. And Cesar in turn would pay the other guys that were Wilberto, his

brother and Vivique."

63 Leaving aside the failure of defendant to object timely to any of these

statements, we point out that Panzardi's first statement about paying theunloaders and then identifying defendant was, like Vega's courtroom

identification of defendant, not a statement within the definition of Fed.R.Evid.

801(d)(2)(E). Panzardi stated directly that defendant helped unload the

marihuana and identified him. It is true that his statement that he paid the

unloaders is at variance with his subsequent statements as to how payments

were made. This, however, was a matter for cross-examination and ultimately

for the jury. Panzardi's statements did not implicate Fed.R.Evid. 801(d)(2)(E).

64 There was also testimony by Gloria Nieves which defendant claims should

have been excluded as hearsay. She testified that she had seen the defendant at

his brother's house the night a truckload of marihuana from the sea smuggle

was brought to the house. Nieves made a courtroom identification of defendant.

She further testified that defendant and two others, Wilfred and Alvaro,

unloaded the marihuana from the truck that brought it. None of this testimony

was hearsay or within the ambit of Fed.R.Evid. 801(d)(2)(E). It was properly

admitted.

65 (4) The Sixth Amendment Right to Confrontation

66 Based upon our analysis and rulings, there can be no confrontation clause issue.

Moreover, the Court in Bourjaily agreed with the court of appeals "that the

requirements for admission under Rule 801(d)(2)(E) are identical to the

requirements of the Confrontation Clause, and since the statements were

admissible under the Rule, there was no constitutional problem." 107 S.Ct. at

2782.

6 The conviction of Edwin Romero Lo ez is affirmed.


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D. NO. 87-1650, LUIS A. ROMERO LOPEZ

.

68 This defendant was found guilty on count one, the conspiracy count, and also

convicted on the following counts: two, aiding and abetting in importing

marihuana in April of 1982; three, aiding and abetting in possessing with intent

to distribute marihuana in April of 1982; six, aiding and abetting in importing

marihuana in October and November of 1982; seven, aiding and abetting in

possessing with intent to distribute marihuana in October and November of

1982; eight, aiding and abetting in importing marihuana on or about December

11, 1982; and nine, aiding and abetting in possessing with intent to distribute

marihuana on or about December 11, 1982. Defendant was not charged on

counts four and five of the indictment.

69 Appellant raises three issues: (1) that he was prejudiced because, although a

single conspiracy was charged, the evidence at trial established multiple

conspiracies; (2) the conviction was the product of an invalid indictment; and

(3) the district court erred in finding him a dangerous special drug offender.

Before we start our consideration of the issues, we note that appellant was

frequently referred to as "Nando" during the trial and that he is the brother of

defendant Edwin Romero Lopez. We use the name Nando to refer to this

defendant when appropriate.

70 (1) Single vs. Multiple Conspiracies

71 Appellant argues that there were four separate and distinct importations of

marihuana and that each of them constituted a separate conspiracy, not the

single conspiracy charged in count one. It is true that there were four separate

importations but as has been already pointed out, the conspiracy charge was not

that defendant and others conspired to smuggle marihuana into Puerto Rico butthat he and others conspired to possess with intent to distribute marihuana

between the end of 1981 and the first part of 1983. The evidence was

overwhelming that defendant was part of such a conspiracy.

72 Defendant participated in the unloading of the marihuana obtained in the sea

smuggle and his house was used as a storage depot for a portion of it.

According to Panzardi, "Nando" arranged with one of the security guards

employed at the Palmas del Mar resort to act as a lookout during the unloadingof the marihuana smuggled in by sea; the unloading took place at Palmas del

Mar. It was the defendant who paid the guard the agreed upon price of fifteen

thousand dollars for his services during the sea smuggle. It could be fairly


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inferred from the evidence that defendant also paid the guard to act as a lookout

for the air smuggles; the landing field used was at Palmas del Mar. Prior to the

first air smuggle, Panzardi, his chief lieutenant Castro, and another conspirator,

Wilberto, met at "Nando's" house. Panzardi and his henchmen also met at

"Nando's" house prior to the plane landing in the second air smuggle.

Defendant was directly involved in the third and last air smuggle. He was

present when the plane landed and helped unload the marihuana. This evidencewas sufficient to convict defendant as charged in count one and even on

appellant's theory of four separate conspiracies, he could have been found

guilty of participation in all four. The evidence is also sufficient to sustain the

convictions on the substantive counts.

73 (2) The Validity of the Indictment

74 Appellant claims that the testimony before the grand jury of the government's

main witness, Panzardi, an admitted perjurer, is "suspect," and that the

indictment against him, therefore, must be dismissed. He relies on two Ninth

Circuit cases, United States v. Samango, 607 F.2d 877 (9th Cir.1979) and

United States v. Basurto, 497 F.2d 781 (9th Cir.1974). In Samango, an

indictment dismissal was upheld due to flagrant and numerous instances of

prosecutorial misconduct which resulted in a biased jury. In Basurto, the due

process protection of the fifth amendment was the basis for dismissing an

indictment where the prosecutor was informed prior to trial by a witness thathe, the witness, had lied before the grand jury as to an issue material to the

sentencing of the defendant.

75 It is well established that "[a]n indictment returned by a legally constituted and

unbiased grand jury, ... if valid on its face, is enough to call for trial of the

charge on the merits." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct.

406, 409, 100 L.Ed. 397 (1956). See Lawn v. United States, 355 U.S. 339, 78

S.Ct. 311, 2 L.Ed.2d 321 (1958). The Supreme Court has also held that an

indictment returned by a legally constituted and unbiased grand jury "is not

subject to challenge on the ground that the grand jury acted on the basis of

inadequate or incompetent evidence." United States v. Calandra, 414 U.S. 338,

363, 94 S.Ct. 613, 627, 38 L.Ed.2d 561 (1974). The prosecutor before a grand

jury is not normally under a duty to disclose exculpatory evidence. United

States v. Bucci, 839 F.2d 825, 831 (1st Cir.), cert. denied, --- U.S. ----, 109 S.Ct.

117 (1988); United States v. Wilson, 798 F.2d 509, 517 (1st Cir.1986). See also

United States v. Page, 808 F.2d 723, 727-28 (10th Cir.), cert. denied, 482 U.S.918, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1987). Nor, contrary to what appellant

infers, is the prosecutor obligated to impeach the credibility of his own

witnesses. Bucci, 839 F.2d at 831. See United States v. Smith, 552 F.2d 257,


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The standard for the dismissal of an indictment due to prosecutorial misconduct

places a heavy burden upon appellants: "The basic rule is that, because of the

constitutionally mandated independence of the grand jury and the prosecutor, courts

should be reluctant to dismiss an indictment. A dismissal, therefore, will be ordered

only for serious and blatant prosecutorial misconduct that distorts the integrity of the

judicial process."

261 (8th Cir.1977); cf. United States v. Calandra, 414 U.S. at 344-45, 94 S.Ct.

at 618-19.

76 Turning first to the prosecutorial misconduct theory, it is difficult to see how

the facts in this case are similar to the facts in Samango, as appellant's brief

suggests. In Samango, the primary concern of the court was that the grand jury

was unable to determine the credibility and sufficiency of the testimonypresented before them in the form of a 1,000-page transcript which "could have

lulled the jurors into accepting the testimony as true, without actually noticing

that it was the prosecutor who was supplying the testimony." Samango, 607

F.2d at 881. Here, Panzardi testified in person before the grand jury, which thus

had an opportunity to asses his credibility.

77 In any case, appellant has failed to meet the burden of establishing prosecutorial

misconduct.

78

79 United States v. Giorgi, 840 F.2d 1022, 1030 (1st Cir.1988) (quoting United

States v. Ogden, 703 F.2d 629, 636 (1st Cir.1983)). Accord United States v.

Rodriguez, 738 F.2d 13, 16 (1st Cir.1984) (dismissal of indictment due to

prosecutorial misconduct is extraordinary remedy). There is no evidence here

of "serious and blatant prosecutorial misconduct" that distorted the integrity of

the judicial process.

80 It must also be noted that in Samango, the court upheld a district court

dismissal of an indictment based on a pretrial challenge, rather than a challenge

after a trial on the merits. In United States v. Al Mudarris, 695 F.2d 1182 (9th

Cir.), cert. denied, 461 U.S. 932, 103 S.Ct. 2097, 77 L.Ed.2d 305 (1983), where

the prosecutor's behavior was similar to the behavior in Samango, the Ninth

Circuit refused to dismiss an indictment when the defendant challenged the

indictment after conviction. Id. at 1188. We have recognized the extraordinary

nature of a post conviction dismissal of an indictment. In Pocardo v. United

States, 784 F.2d 38 (1st Cir.), cert. denied, 479 U.S. 916, 107 S.Ct. 320, 93L.Ed.2d 293 (1986), we stated: "the sanction, however, of dismissing an

indictment after a defendant has been convicted of an offense is employed in

only truly extreme cases of egregious prosecutorial misconduct." Id. at 44. In


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the instant case, the defendant asks for the indictment to be dismissed after trial

and has raised the issue for the first time on appeal. Since this is neither an

exceptional case, nor the error obvious, or one affecting the fairness and

integrity of the trial, the indictment cannot be dismissed. See United States v.

Murphy, 762 F.2d 1151, 1155 (1st Cir.1985).

81 As for appellant's due process theory under Basurto, he must establish that thegovernment knew the indictment was based partially on perjured testimony

which is material. Basurto, 497 F.2d at 785. This is different than using a

witness who has committed perjury in the past. Moreover, even assuming grand

jury bias resulting from its ignorance of Panzardi's tendency to lie under oath,

this error was cured by the verdict of the petit jury, which was made aware

during trial of Panzardi's past perjury. See United States v. Mechanik, 475 U.S.

66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986).

82 We find that the indictment was valid.

83 (3) The Sentencing

84 Defendant claims that the district court erred in finding him a special and

dangerous drug offender and giving him an enhanced sentence. The pertinent

parts of the statute in effect at the time of sentencing, since repealed, provide:

85 (e) A defendant is a special drug offender for purposes of this section if--

86 (1) [not applicable], or

87 (2) the defendant committed such felonious violation as part of a pattern of

dealing in controlled substances which was criminal under applicable laws of

any jurisdiction, which constituted a substantial source of his income, and in

which he manifested special skill or expertise; or

88 (3) such felonious violation was, or the defendant committed such felonious

violation in furtherance of, a conspiracy with three or more other persons to

engage in a pattern of dealing in controlled substances which was criminal

under applicable laws of any jurisdiction, and the defendant did, or agreed that

he would, initiate, organize, plan, finance, direct, manage, or supervise all or

part of such conspiracy or dealing, or give or receive a bribe or use force in

connection with such dealing.


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E. NO. 87-1649, HENRY CASTRO-POUPART A/K/A QUIQUE

confinement longer than that provided for such felonious violation is required

for the protection of the public from further criminal conduct by the defendant.

90 21 U.S.C. Sec. 849(e) and (f).

91 In addition to the trial evidence which established that defendant was deeplyinvolved as one of the chief lieutenants of Panzardi in the marihuana smuggling

venture, there was also evidence adduced at the sentencing hearing from which

the following could be found: In 1983, defendant was involved with Panzardi in

importing seven kilos of cocaine into Puerto Rico. Defendant helped Panzardi

import two loads of marihuana from Tortola; each time he was paid between

seven and eight thousand dollars. While working for someone other than

Panzardi in importing marihuana, defendant was involved in a shooting in

Humacao. Defendant helped unload and store a planeload of marihuana in asmuggle involving Cesar Castro and a Mr. Vladamir.

92 We find no error in the district court's determination that defendant was a

special and dangerous drug offender under 21 U.S.C. Sec. 849(e) and (f).

93 The conviction of Luis Romero Lopez is affirmed.

94

95 Castro-Poupart was charged in counts one, seven and nine of the indictment.

Count seven was dismissed at trial after the government conceded the lack of

evidence against defendant. The jury found defendant guilty on count one, the

conspiracy count and count nine, aiding and abetting in possessing with intent

to distribute marihuana on or about December 11, 1982.

96 Appellant raises two issues: that the evidence was insufficient to convict himon the conspiracy count, and that the district court erred in sentencing him.

97 (1) The Sufficiency Of The Evidence On The Conspiracy Count

98 Appellant has not appealed his conviction on count nine, aiding and abetting in

possessing marihuana with intent to distribute it. This is a realistic view of the

evidence. His contention is that the evidence is insufficient to establish that heentered into a conspiratorial agreement. The evidence can be summarized as

follows: A truckload of marihuana from the third plane smuggle was stored at

defendant's house. The truck with the marihuana first went to the house of one


22/28

Angel-Rosa-Collazo but it was too big to fit into the carport. Panzardi and Cesar

then decided to take the marihuana to defendant's house because, in Panzardi's

words, "I knew him and he had worked with me and Cesar decided to take it

there." Panzardi also testified that defendant was one of those who took part in

selling the marihuana.

99 Based on this evidence, two inferences could be made: (1) defendant must haveknown when the truckload of marihuana arrived at his house that there was a

marihuana distribution scheme of some magnitude; and (2) that the marihuana

was taken to defendant's house without advance notice after the storage place

originally chosen turned out to be inadequate meant that defendant and Panzardi

had a working relationship. Defendant's participation in the distribution of the

marihuana gives credence to these inferences. This evidence was sufficient for

the jury to find that the defendant participated in a conspiracy to possess

marihuana with intent to distribute it, as charged in count one.

100 (2) The Sentencing

101 Appellant mounts two challenges to his sentence: (1) that he should not have

been sentenced as a special and dangerous drug offender; and (2) that the court

erred in including special parole terms in his sentences on both counts.

102 The pertinent provisions of the special and dangerous drug offender statute, 21

U.S.C. Sec. 849(e) and (f), have already been set forth. Unlike the case of Luis

Romero Lopez, supra, the evidence adduced at trial against this defendant was

not sufficient for a finding that he was a special and dangerous drug offender.

Whether the requirements of the statute were met, therefore, depends entirely

on the evidence submitted at the sentencing hearing held on June 29 and 30,

1987. This evidence was as follows.

103 Defendant approached Panzardi and told Panzardi that he had a connection in

Chicago and that if Panzardi put up the money, they could buy "half a key" of

heroin. Panzardi gave defendant fifteen or twenty thousand dollars and

defendant made the arrangements for two women to bring the heroin from

Chicago to San Juan. Defendant helped sell the heroin which was disposed of at

a substantial profit.

104 In 1984 defendant picked up a load of eight to ten thousand pounds ofmarihuana at a desolate area in Fajardo. Defendant was familiar with the pick-

up site. Panzardi paid defendant seven to eight thousand dollars for his services,

which included selling part of the marihuana.


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105 Defendant also sold marihuana that he had obtained from Panzardi's brother.

Defendant's main base for drug selling was located in a housing project.

106 Panzardi sent defendant to St. Martin with a person by the name of Kike Oliver

to pick up ten kilos of cocaine. Defendant picked up the cocaine and, after

wrapping it suitably, dropped it into the water where Panzardi was waiting to

retrieve it. Defendant was paid ten thousand dollars for this chore.

107 Panzardi sold three or four ounces of uncut heroin to defendant in 1985 for six

thousand dollars an ounce. Defendant then cut the heroin and sold it.

108 This evidence was sufficient for a finding by the district court that Castro-

Poupart was a special and dangerous drug offender under 21 U.S.C. Sec. 849(e)

and (f).

109 The next sentencing issue is the imposition of a special parole term of five

years on counts one and nine, to be served concurrently. The government

agrees that the special parole term imposed on count one was error because it

violated the teaching of Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247,

65 L.Ed.2d 205 (1980). Although we are not without some doubt, we are

constrained to find that the special parole term imposed on count nine was also

error. We think that United States v. Santamaria, 788 F.2d 824 (1st Cir.1986),controls. In that case we pointed out:

110 Prior to amendment in October 1984, the penalty provisions set forth in 21

U.S.C. Sec. 841(b)(1)(A) (1982) required imposition of a special parole term

upon a person convicted under 21 U.S.C. Sec. 841(a) of an offense involving a

narcotic drug. Those penalty provisions were recast by section 502 of the

Comprehensive Crime Control Act of 1984, 21 U.S.C.A. Sec. 841(b)(1)(A)

(West Supp.1985). The new provisions prescribe penalties of differentmagnitudes depending upon the amount of narcotics involved in an offense,

and raise the maximum penalties. Under the new provisions, however, a special

parole term, while mandatory for offenses involving less than one kilogram of

narcotic drug, is not authorized for an offense that involves one kilogram or

more of a narcotic drug--an offense for which Santamaria was convicted. Thus,

there is no basis here for the imposition of a special parole term, and that

provision of the sentence is vacated.

111 Id. at 829. The same reasoning would seem to apply here. Although it may be

of small moment, considering the length of incarceration to be served, the

special parole terms provisions imposed on count one and count nine are


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F. NO. 87-1582, MANUEL ORTIZ-ORTIZ

vacated. In all other respects, the conviction and sentence of Henry Castro-

Poupart is affirmed.

112 Manuel Ortiz-Ortiz was charged in all nine counts of the indictment. He was

found guilty on counts one, two, four, six and eight and not guilty on the others.There are essentially two issues to be decided: the admissibility of out-of-court

statements of co-conspirators and the sufficiency of the evidence.4Since the

out-of-court statements and the testimony related to them constitute the main

evidence against appellant, the two issues are inextricably intertwined. We

therefore set forth in detail all the testimony implicating defendant.

113 (1) The Evidence

114 The government established through the testimony of Carmelo Ortiz, director

of security at Palmas del Mar, that defendant was employed as security

supervisor with a title of sergeant at the time that the sea smuggle and the three

air smuggles occurred. Employee time records were introduced; they showed

that on the critical dates the defendant was working on the premises.

115 In discussing the plans he had made with Luis Romero Lopez (Nando),

Panzardi testified that Nando "had already made arrangements ahead of time

regarding Palmas with the sergeant in regard to security." When asked "What

do you mean by that?" Panzardi responded: "According to what I understood

and according to what he told me that--." There was an objection on hearsay

grounds. The court then asked, "Who is Manuel?" Panzardi answered: "We

called him the sergeant, Mr. Manuel. He was the person in charge of security at

Palmas." The court then asked Panzardi if he knew his name. The reply was:

"Manuel. We used to call him the sergeant. I do not recall the last time."

(probably meaning last name ). When asked by the court if the person was in

the courtroom, Panzardi identified defendant. Panzardi then went on to testify

that Ortiz' task was to prevent anyone going onto the side of Palmas del Mar

where the marihuana was being unloaded and that he was to be paid fifteen

thousand dollars. Panzardi then stated that Cesar Castro was "in charge of

paying, and Cesar Castro was going to pay Nando and Nando was going to pay

the sergeant." Panzardi was then asked, "Did the sergeant know what the

protection was for?" He answered: "He knew." Defendant's objection was

overruled. In response to the question, "How is that you knew that he knew,"Panzardi stated, "I knew that Nando had spoken to him. He was a person of

trust." Defendant objected again; the objection was overruled.


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116 In describing the details of the sea smuggle, Panzardi testified that after the

marihuana had been unloaded from his boat he drove the boat to the marina at

Palmas del Mar and he and Cesar proceeded to clean the inside of it. While

they were cleaning it, a vehicle drove up and Panzardi said, "Cesar somebody is

there, take a peak [sic] and see who it is." According to Panzardi, Cesar replied,

"Don't worry about it, that is the man from here." Panzardi then testified that as

Manuel approached the boat, he and Cesar got out of the boat, walked up toManuel and "exchanged some words that I don't recall." After Manuel left,

Panzardi and Cesar resumed cleaning up the boat. There was no objection to

this testimony.

117 In testifying about the September air smuggle, Panzardi stated that it had been

agreed that the shipment would arrive early, "because the sergeant changed

shifts, I think it was at twelve." When asked to whom he was referring,

Panzardi replied, "Mr. Manuel Ortiz Ortiz," and then stated: "He is the one that

used to insure our security and if someone would arrive he is the one that tell

them to go somewhere else." Panzardi further testified that Cesar had paid Ortiz

fifteen thousand dollars for his services for the September air smuggle. There

was no objection to this testimony.

118 Panzardi also implicated appellant in the second (October) air smuggle. When

asked what arrangements had been made to pick up the shipment at Palmas del

Mar, he testified that he had spoken to Cesar, who had taken care of everything

with Manuel Ortiz. Panzardi further testified that when he was told that Ortiz

was asking for more money for his services for this shipment, seventeen

thousand dollars, that he said "Give it to him, there is no problem." There was

no objection to this testimony.

119 When Panzardi was being questioned about the third air smuggle (December),

he was asked what security arrangements had been made. He replied thateverything had been set up: "Nando and Cesar had spoken to the Sergeant, to

Mr. Manuel Ortiz." Panzardi further testified that Cesar paid Ortiz seventeen

thousand dollars for his services on this smuggle. There was no objection to

this testimony.

120 Gloria Nieves Baez also implicated Ortiz. She testified that she noticed Ortiz

among the contingent of police that arrived at the Palmas landing strip on

December 11, 1982. By the time the police arrived, the marihuana had beenunloaded and trucked away. Nieves testified that when she saw Ortiz, she asked

Panzardi, "what is this man doing here, he is supposedly working with us?" She

then testified that she "knew him as the Palmas del Mar sergeant and I think his


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three questions regarding the admission of statements under Rule 801(d)(2)(E): (1)

whether the court must determine by independent evidence that the conspiracy

existed and that the defendant and the declarant were members of this conspiracy;

(2) the quantum of proof on which such determinations must be based; and (3)

whether a court must in each case examine the circumstances of such a statement to

determine its reliability.

Before admitting a co-conspirator's statement over an objection that it does not

qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually

falls within the definition of the rule.

name is Manuel." Nieves then made a courtroom identification of Ortiz. Nieves

was then asked what Panzardi told her about the sergeant. She replied that

Panzardi told her that the sergeant had to be there so that the police would not

be suspicious. No objection was made to Nieves' testimony.

121 At the conclusion of the government's case, defendant moved to strike all

hearsay statements pertaining to him. As we have already noted, this is notsufficient to meet the timely objection requirement of Fed.R.Evid. 103(a)(1).

122 (2) The Law

123 In Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144

(1987), the Court addressed,

124

125 Id. 107 S.Ct.at 2777-78. At the start of its analysis, the Court stated:

126

127 Id. at 2778. The Court held "that when the preliminary facts relevant to Rule

801(d)(2)(E) are disputed, the offering party must prove them by a

preponderance of the evidence." Id. at 2779. This, of course, has been the rule

in the First Circuit since United States v. Petrozziello, 548 F.2d 20, 23 (1st

Cir.1977).

128 The Court discussed at length the effect of Fed.R.Evid. 104 on the boot-

strapping rule of Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.

680 and United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039

(1974). It rejected petitioner's argument "that a court should not consider

hearsay statements at all in determining preliminary facts under Rule 801(d)(2)(E)," and held that Rule 104 "on its face allows the trial judge to consider any

evidence whatsoever bound only by the rules of privilege." 107 S.Ct. at 2780.


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129 Directly relevant to the case at hand is the statement. "We think that there is

little doubt that a co-conspirator's statements could themselves be probative of

the existence of a conspiracy and the participation of both the defendant and the

declarant in the conspiracy." 107 S.Ct. at 2781. The court went on to note,

however, that the out-of-court statements implicating the defendant were

"corroborated by independent evidence." Id. The Court then held that the out-

of-court statements were properly admitted. Id. at 2782. Finally, the Court held

"that the Confrontation Clause does not require a court to embark on an

independent inquiry into the reliability of statements that satisfy the

requirements of Rule 801(d)(2)(E)." Id. at 2783 (footnote omitted).

130 We now apply the teaching of Bourjaily to the case before us. There can be no

question that Panzardi's testimony established that there was a conspiracy

involving at least himself, Cesar and Nando to possess marihuana with intent to

distribute it as charged in count one. The proof of such conspiracy did not rest

on hearsay statements. The statements made by Cesar and Nando and testified

to by Panzardi implicating defendant in the conspiracy were statements "by a

co-conspirator of a party during the course of and in furtherance of the

conspiracy." Fed.R.Evid. 801(d)(2)(E). That portion of Panzardi's testimony in

which he stated that the defendant knew what the protection was for because, "I

(Panzardi) knew that Nando had spoken to him. He was a person of trust,"

should have been stricken. It did not fall within the definition of Fed.R.Evid.

801(d)(2)(E). This statement, however, was not crucial and its admission was

harmless error.

131 There was, as in Bourjaily, independent evidence that corroborated the out-of-

court statements. The government proved by testimony and time records that a

person with the name of Manuel Ortiz-Ortiz worked as a security guard in the

position of sergeant for Palmas del Mar, and that he was on the premises at the

critical times. The testimony of Panzardi that he and Cesar talked to the

defendant on the morning after the sea smuggle at the Palmas del Mar marina

was not an out-of-court statement. It is true that prior to meeting defendant,

Panzardi testified that he had been told by Cesar that the person approaching

the boat was the security guard that was in their pay; this was an 801(d)(2)(E)

statement. But Panzardi's testimony that he talked to the defendant was

independent evidence, just as was his courtroom identification. That Panzardi

did not remember the subject of the conversation between defendant and

himself bore on credibility, not admissibility.

132 Finally, we point out that the out-of-court statements to which there were no

timely objections were properly before the jury. What the Court stated in


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SUMMARY

Also spelled marijuana and marajuana

Rivera was acquitted on count two, aiding and abetting in April of 1982 in

intentionally importing marihuana into the United States

The voir dire was held outside the presence of the jury

Defendant also appealed the restriction on cross-examination of Gloria Nieves

Baez. This issue was discussed and decided in the case of Edwin Romero

Lopez. Our holding that it was not error to refuse to allow disclosure of thesentencing order of Nieves applies with equal force to Ortiz' appeal

Bourjaily is pertinent: "[I]ndividual pieces of evidence, insufficient in

themselves to prove a point, may in cumulation prove it. The sum of an

evidentiary presentation may well be greater than its constituent parts." 107

S.Ct. at 2781.

133 Bourjaily also dooms appellant's confrontation clause challenge to the out-of-

court statements. 107 S.Ct. at 2782-83.

134 We hold that the co-conspirator's out-of-court statements to which objections

were made were properly admissible, except as noted. We also hold that the

evidence was sufficient for a finding of guilty beyond a reasonable doubt on

those counts on which defendant was convicted. The conviction of Manuel

Ortiz-Ortiz is affirmed.

135 The judgments and sentences in all cases are affirmed except that in the case of

Henry Castro-Poupart the special parole terms imposed are vacated. That case

is remanded for correction of the sentence.

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Documents

United States v. Antonio Rivera-Santiago, A/K/A Junior Vivique, United States of America v. Nestor Cancel-Hernandez, A/K/A Papo, United States of America v. Edwin Romero-Lopez, United